The Mixed Bag S.B. 1070 SCOTUS Decision and the White House Response

Yesterday, the Supreme Court delivered a mixed decision on the fate of four specific parts of Arizona’s infamous Senate Bill 1070.

Three of the four sections of the larger law that had been argued against by the U.S. Department of Justice were determined to be unconstitutional, specifically violating the supremacy clause which basically says that Federal law overrides state law.

The sections deemed unconstitutional are (from the Crimmigration blog):

Section 3, which, the Ninth Circuit explained, “essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011)

Section 5(C), which makes it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona. United States v. Arizona, 641 F.3d 339, 357 (9th Cir. 2011)

Section 6, which permits warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States.” United States v. Arizona, 641 F.3d 339, 360 (9th Cir. 2011).

However, one of the most controversial parts of the law was upheld. Section 2(B) requires police officers to check the immigration status of all people stopped, detained, or arrested presumed there is “reasonable suspicion” to believe that the person is an undocumented immigrant and…

requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” United States v. Arizona, 641 F.3d 339, 347 (9th Cir. 2011)

I am not surprised by the decision and I question if there is as large an impact because of the decision. Federal policy, specifically Secure Communities and 287(g) have basically empowered law enforcement to stop those they suspect of being undocumented. This, contrary to what many like to say, was not about civil or human rights. It was about asserting Federal power and we have seen federal power under President Obama help create record breaking deportation numbers. The precedent for racial profiling of Latinos, the precedent for amping up criminalization of immigrant communities has its roots in federal policy.

Both sides of the political spectrum are essentially engaged in a war over which can best spin the actions of the Obama administration. The problem is that neither side is being honest. In his dissent US Supreme Court Justice Antonin Scalia framed the recent DHS memo as allowing undocumented children and adults to compete with “Americans” for jobs, when really we have no idea if anyone will get deferred action or a work permit. On the other side, Obama’s post decision move to suspend 287(g) is being hailed as more proof of just how committed he is to doing whatever he can towards comprehensive immigration reform. Except for one tiny thing, the program which allows local law enforcement to enter into contracts with Immigration and Customs Enforcement and act essentially as immigration agents, was already scheduled to be defunded as per DHS’s budget released in February of this year (see page 16 of this PDF). The defunding, much like the arguments against SB 1070 has nothing to do with the despicable record of Maricopa County Sherriff Joe Arpaio, whose persecution of Latinos in Arizona under 287(g) have led to lawsuits against his office. 287(g) is on the budgetary chopping block so that more comprehensive deportation programs like Secure Communities can be implemented as mandatory nationwide policy.

Fears of racial profiling held by many of Arizona’s Latino community are not unfounded, but racial profiling did not start with and won’t end with SB1070. We have especially seen over the past 10 years how immigration has been racialized as Brown and ethnicized as Mexican. This decision doesn’t change that.

You can read the full Supreme Court decision here (PDF)